ness? It may be that conviction of the crime of assault and battery in many instances would be no substantial ground for impairing credibility, but the legislature may designate the crimes, a conviction of which will affect credibility; and the courts cannot restrict or enlarge the enactment of the lawmaker, upon their view that some crimes do, and others do not, evince unreliability. The act of 1874 does not submit to the court a question of law,-whether the crime charged should affect credibility. It is a question for the jury, whose province alone it is to say to what extent, if any, credibility shall be affected. Proof of previous conviction of crime is not, and cannot be, offered or considered to establish the guilt of a prisoner on his trial. Its only purpose and object are to affect the credit to be given to his own testimony, voluntarily offered by him on his own behalf.

After most careful reflection, I am convinced that this is the true construction of the existing law, and it is supported by judicial decisions in other states, which are entitled to great consideration. The case of State v. Sauer, 42 Minn. 258, 44 N. W. 115, is in point. The statute in that state is, "conviction of any crime." Ours is, "conviction of crime." The language in the one case is no more comprehensive than in the other. The Minnesota court said: "The irresistible conclusion is that the legislature intended just what it said, leaving the whole matter, when evidence of crime is produced, to the good judgment of the jury." In Com. v. Hall, 4 Allen, 308, the court said: "It is suggested that, by the true construction of the statute, the crimes which may be proved to impeach a witness are only those which might formerly have been proved to exclude him. The statute says the conviction of any crime may be shown to affect the credibility of any person testifying. This language is clear, and there is no reason to suppose that there was any intent to change the law by the General Statutes." The language used in the Massachusetts statutes is, "any crime." To the like effect are the following cases: Helm v. State, 67 Miss. 562, 7 South. 487; Com. v. Ford, 146 Mass. 131, 15 N. E. 153. The words used in our statute are, "convicted of crime, and such conviction may be shown on cross examination of the witness for the purpose of affecting his credit." There being no specification or designation of the crime to which this inquiry may be directed, the accepted rules of interpretation will be disregarded if proof of the conviction of any crime is withheld from the jury. act permits the conviction to be shown on the cross-examination of the witness. In Com. v. Lockwood, 199 Mass. 323, 12 Am. Rep. 699, Mr. Justice Gray correctly states the distinction between the terms "conviction" and "judgment" in this language: "The ordinary legal meaning of 'conviction,' when used to designate a particular stage of a

The

prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while 'judgment' or 'sentence' is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained." Our statute places the conviction in direct contrast with the record thereof. The question was properly put to the defendant, whether he had not been convicted of crime. The distinction between "conviction" and "judgment" has been very generally observed. 4 Bl. Comm. p. 361; 1 Bish. Cr. Law (7th Ed.) p. 963; U. S. v. Gilbert, 2 Sumn. 40, Fed. Cas. No. 15,204; People v. Goldstein, 32 Cal. 432; Stevens v. People, 1 Hill, 261; U. S. v. Watkinds (C. C.) 6 Fed. 153; People v. Adams, 95 Mich. 543, 55 N. W. 461; Quintard v. Knoedler, 53 Conn. 485, 2 Atl. 752, 55 Am. Rep. 149. In Roop v. State, 58 N. J. Law, 480, 34 Atl. 749, the question here involved was passed upon by our supreme court. The defendant in that case was a witness on his own behalf in a criminal trial. On his cross-examination he was asked whether he had been convicted of keeping a disorderly house, which is not one of the crimes mentioned in the Paterson act. In the opinion in that case, delivered by our present Chancellor Magie, and concurred in by the late Chief Justice Beasley, it was held that the question was competent for the purpose of affecting his credit, under section 1 of the act concerning evidence (2 Gen. St. p. 1397). The Paterson act was a restraining statute in its effect on the common law, and, if its repeal revived the common law, the uncertainty which existed under the common law would prevail here, and crimes not specified in that act would totally disqualify a witness. At common law larceny under the value of $6 rendered a witness incompetent. 1 Greenl. Ev. § 373, and notes. Therefore, while the crime of grand larceny would only affect the credibility of a witness, the crime of petit larceny would disqualify him.

The question remaining to be considered is whether it was competent to ask the de fendant whether he had pleaded non vult contendere to an indictment for petit larceny. The plea of nolo contendere has the same effect as a plea of guilty, so far as regards the proceedings on the indictment. It is a confession only for the purposes of the criminal prosecution, and does not bind the defendant in a civil suit for the same wrong. Whart. Cr. Pl. § 418; Bish. Cr. Proc. § 802. A judgment founded on a plea of guilty or of nolo contendere is in like manner conclusive in a subsequent criminal prosecution, but in civil suits it is not such an admission of guilt as to be evidence against the party pleading it. 2 Whart. Ev. § 783. In Com. v. Horton, 9 Pick. 206, it is held that a plea of nolo contendere to an indictment has the same ef

fect in the criminal trial itself as a plea of guilty, and sentence thereupon follows. In our supreme court, in a case decided in 1884, and not since called in question, it is held that a plea of nolo contendere is equivalent to a plea of guilty; the only difference in the significance of the two pleas being in the force each has upon a collateral proceeding. Peacock v. Hudson Co., 46 N. J. Law, 112. The books agree that the only advantage the defendant obtains by this plea is that he is not estopped to set up his innocence in an action based upon the same facts. 2 Hawk. Ch. 31, 3. 1 Chit. Cr. Law, p. 431. The defendant cannot plead this plea as of right; he must obtain the consent of the court to do so; and the fact that he has pleaded non vult presupposes that he had obtained leave of the court to enter such plea. The question whether the defendant had pleaded non vult was equally competent with the question whether he had pleaded guilty.

I have found no error in the proceedings of the trial court, and am of the opinion that the judgment should be affirmed.

(62 N. J. E. 578)

CANFIELD et al. v. CANFIELD et al. (Court of Chancery of New Jersey. Nov. 15, 1901.)

WILL CONSTRUCTION-NONCOMPLIANCE WITH

TERMS-LAPSED LEGACY-EFFECT-CONVERSION OF REAL INTO PERSONAL ESTATE.

1. A will directed the executors to reserve the sum of $5,000 for a monument, authorized expenditures for a fence and certain inscriptions, and concluded by empowering them "to expend for the above purposes the sum of $5,000, and no more." Held not to require the expenditure of the entire $5,000 for the purposes named, but only that a greater sum should not be used.

2. A will authorized the executors, after the death of testator's wife, to expend the sum of $5,000 in erecting a monument, "and no more. The executors, however, with the concurrence of the wife and family, put up a monument costing $625 on a burial lot of which testator was part owner, and no other expenses were incurred. Held that, if the will required the expenditure of the whole $5,000 for the purpose named, the residuary legatees would not be benefited by the noncompliance with its conditions, but the executors would still be bound to carry out its directions, notwithstanding the erection of the cheaper monu

ment.

3. Where one of the residuary legatees in a will dies before the testator, under the peculiar language of the will, his share does not go to the other residuary legatees, but the testator dies intestate in respect thereto.

4. A will directed that certain land be sold after the death of the testator's wife, and that the money be divided among the residuary legatees, and the estate was so converted. The share of one of such legatees in the proceeds of the sale had, however, lapsed by her death before that of testator. Held that, the purpose of the conversion having failed, such share should be treated, for the purposes of distribution, as real estate, and not as personalty, and should go to the heir at law.

5. The Wills Act, § 34 (3 Gen. St. p. 3763), provides that where a testator devises property to a child or other descendant, or to a brother or sister, or any descendant of a brother or sister, and such devisee dies before

the testator's death, survived by a child or by the descendants of such child, the devise shall not lapse, but shall vest in such children or descendants, etc. Held, that the widow of testator's brother was not within the act, and that a devise to her lapsed by her death before that of the testator.

Bill to construe a will by John D. Canfield and others, executors of Alfred W. Canfield, deceased, against Isaac N. Canfield and others. Will construed.

Alfred Mills, for complainants. Mahlon Pitney, for defendant Charlotte I. Shelton and others. Joseph Hinchman, for defendant Cornelia C. Woodward. P. B. Pierson, ́ for defendant Isaac N. Canfield.

STEVENS, V. C. The questions to be decided arise upon the will and codicil of Alfred W. Canfield, who died in 1871. By the codicil he directed his executors to reserve the sum of $5,000, to be expended by them in building a monument. He recited that he was part owner of a lot in Evergreen Cemetery, and he authorized his executors to erect it upon that lot, and, if they should not deem it advisable to erect it there, upon another lot to be purchased by them. He also authorized expenditure for a fence and certain inscriptions, and he concluded as follows: "I authorize and empower my executors, and the survivor of them, to expend for the above purposes the sum of $5,000, and no more." This monument was not to be erected until the death of his wife, the postponement being manifestly for her benefit; but with the concurrence of herself and the family the executors (she being one) put up on the lot of which he was part owner a monument costing $625. No other expenses were incurred. The question is whether the executors were under a legal obligation to expend the whole of the sum of $5,000 for the purposes mentioned, and, if not, to whom the unexpended balance belongs. I think it was not the intention of the testator to require the expenditure for this one object of the full sum of $5,000. He intended that the monument, lot, fence, and inscriptions should not together exceed $5,000. He says this in so many words, but he does not say that this sum must be spent if neither lot, fence, nor inscription were necessary. He had no definite sum in mind for the cost of the monument alone. This might have been greater or less as the cost of the other things was more or less. Again, he "reserves" the sum of $5,000, to be expended in building the monument "as hereinafter directed." There is no explicit direction to dispose of all the money in that way only. The final direction is that they "are authorized and empowered" to expend that sum, and no more. On the whole I do not think that, taking this obscurely worded codicil as a whole, it requires such a construction as to compel the expenditure of more money than is reasonably sufficient to effect the object which tes

tator had in view, viz. the erection of a suitable granite monument, laid upon a foundation six feet in depth, properly inscribed and protected. This object, it is conceded, has been attained, and the work has been done under the direction of the widow, to whom he gave, with a trifling exception, the enjoyment of all his property for her life, and in whom he had, presumably, the fullest confidence. If this is not the proper construction of this codicil, the residuary legatees would not be benefited, as some of them appear to have supposed they would. No intestacy would result. It would still be possible to carry out the directions of the will in this regard, and the executors would be bound to do it, if the testator had, in fact, required it; but I do not think he has.

The other question is whether the share of one of the residuary legatees, the widow of testator's brother William, she having predeceased the testator, goes to the other residuary legatees. It is well settled that it does not.

The testator died intestate as to that share. Garthwaite's Ex'r v. Lewis, 25 N. J. Eq. 351; Williams, Ex'rs, 1315. The only arguable question on this branch of the case is whether the share which thus lapsed is to be treated as real estate or personalty. By the so-called "eighth item" of his will the testator directs his land to be sold after the death of his wife, and the money divided among his residuary legatees. The direction to convert is imperative, and the executors have actually converted it. It is admitted that the balance now in their hands is the proceeds of the sale of land. Although this is so, I think there can be no doubt that the money is, for the purposes of distribution, to be treated as real estate, and not as personalty. It was so decided in the leading case of Ackroyd v. Smithson, 1 White & T. Lead. Cas. Eq. 690, where two out of a larger number of residuary legatees had died in testator's lifetime; and this case has been relied upon and followed in this court in Roy v. Monroe, 47 N. J. Eq. 356, 20 Atl. 481, and in the court of appeals in Lerch v. Oberly, 18 N. J. Eq. 575. The principle is thus stated in Roy v. Munroe in a passage quoted by Vice Chancellor Van Fleet from the note of the American editors to the above-cited case of Ackroyd v. Smithson: "The conversion of property from one species to another by the will of the testator takes place only for the purposes of the will, and so far as those purposes do not extend, or in so far as any of them do not take effect in fact or in law, the property is considered as remaining in its former condition, as it was in the hands of the testator, and passes accordingly." On the same general principle it is said by Beasley, C. J., in Lerch v. Oberly: "The principle is established by a multitude of cases that, where real estate is directed, either by the owner or by the order of the law, to be converted into money for a particular object, and a surplus remains after

the accomplishment of such object, such sur plus, as between the heir and personal representative of such owner, will be regarded by a court of equity as land, and will descend as such." "Where," says Lord Eldon in Hill v. Cock, 1 Ves. & B. 175, "a testator means, with regard to a particular purpose, to convert his real estate into personal, if that purpose cannot be served, the court will not infer an intention to convert the estate for any other purpose not expressed." In view of these authoritative declarations, I should not have thought the question open to discussion had it not been for the case of Hand v. Marcy, 28 N. J. Eq. 59. There a testator, after directing a conversion of his lands, gave and bequeathed "the residue of his estate to S. M., L. E., and M. S., their heirs and assigns, to be equally divided between the said S. M., L. E., and M. S." M. S. died in the lifetime of testator. After holding that the legacy had lapsed, and that the surviving residuary legatees were not entitled by survivorship, Chancellor Runyon further held that the lapsed share, composed in part of the proceeds of the sale of land, went wholly to the next of kin, on the ground that the direction to convert was absolute. The only case cited by him in support of that proposition was Miller's Adm'r v. Miller, 25 N. J. Eq. 354. But the point there decided was only that a contract for the sale of real estate works an equitable conversion of the land into personalty from the time it is made, and that the purchase money becomes a part of the vendor's personal estate, and as such distributable, upon his death, to his widow and next of kin. This decision is unquestionably sound, resting as it does upon the well-known rule declared in Fletcher v. Ashburner, 1 White & T. Lead. Cas. Eq. 659; but it had no application to the case then in hand. The distinction involved evidently escaped the notice of court or counsel, and the opinion indicates that the case was thought to turn chiefly upon another matter, viz. the effect of the words "heirs and assigns" on the question of lapse. So strong is the rule that the undisposed-of beneficial interest will result to the heir where the produce of the sale is to be applied for a purpose which either wholly or partially fails that in the case of Fitch v. Weber, 6 Hare, 145, it was held by Sir James Wigram, V. C., on grounds that seem unanswerable, that the heir was entitled, notwithstanding testatrix's declaration that the trustees should stand possessed of the proceeds of the sale "as a fund of personal, and not of real, estate, for which purpose I declare that such proceeds, or any part thereof, shall not in any event lapse or result for the benefit of my heir at law." The testatrix had provided that her trustees should apply the residue of her estate as she should by codicil direct, and she made no codicil. The controversy was between the next of kin and the heir at law. The vice chancellor said: "Admitting the intention to

exclude the heir, is not the intention equally clear to exclude the next of kin? Where, then, is there room for a necessary, or any, implication in favor of the next of kin? In these circumstances I feel myself called upon to follow the course of decisions in holding that the testatrix has expressed an intention to exclude the heir only for the purposes of her will, and that, if her words express more, and she has failed to say who shall take the surplus, the law must dispose of it. I cannot imply an intention in favor of those whom the will excludes. The heir takes not by intention, but in the absence of intention." Without doing violence to the principle upon which Roy v. Monroe and Lerch v. Oberly were decided, I cannot, in this case, give the proceeds of the sale of the land to the next of kin in preference to the heir at law. I think it is perfectly plain that the widow of William Canfield does not answer the description of any of the persons mentioned in section 34 of the wills act (3 Gen. St. p. 3763).

1. Where one in possession of a mill is restrained from removing certain fixtures therefrom, and it is shown that he has removed several of the fixtures from the building, and moved others from their accustomed places, and rendered the mill unusable, he is in contempt.

2. Where one is guilty of a contempt of court by removing fixtures from a mill of which he is in possession, while under an injunction restraining such removal, and it appears that an order of restoration of the removed equipment would be an ineffectual remedy because the removed equipment has to some extent been injured, and in some instances destroyed, the party in contempt, in addition to a restoration, must meet any expenditure of money required to remedy the wrong done.

3. Where one commits a contempt of court by removing fixtures from a mill of which he is in possession while under an injunction forbidding such removal, he will not only be compelled to restore the fixtures and make reparation for damage done to the injured party, but a punishment will be imposed because of the offense to the dignity of the court.

4. Where one commits a contempt of court by removing fixtures contrary to the mandate of an injunction forbidding such removal, and restoration is ordered, the court's determination as to what punishment shall be inflicted for the offense to its dignity will depend on the conduct of defendant in regard to the reparation for the injury.

Proceedings by Timothy W. Ashby and others to punish Amos K. Ashby for a contempt of court consisting of a violation of an injunction served on him. Judgment for petition

ers.

Clarence T. Atkinson, for complainants. David J. Pancoast, for defendant.

GREY, V. C. (orally). This is a proceeding by petition to punish the defendant, Amos K. Ashby, for an alleged contempt of the decree and injunction served upon him in this case. Not only the counsel, but the parties, are here in court, and an expression of the court's views in the presence of the parties may aid in the settlement of the matter. The previous course of procedure was that a bill of complaint was filed in this court alleging that Amos K. Ashby claimed ownership of the fixtures in the mill called the "Delaware Avenue Mill," situated at Burlington, N. J., and that he gave out in speech and declared his purpose to remove those articles. The articles named were "three roller mills, one purifier, smut mill, separators, two buhr mills, flour packer, and all the belting and other fixtures in said mill." The bill also prays that he may be restrained from committing any waste upon the mill premises. The defendant, Amos K. Ashby, by answer, asserted his title to the disputed fixtures. There followed a very severe litigation, resulting in an adjudication in favor of the complainants, restraining the defendant, Amos K. Ashby, from removing the named articles and the belting and other fixtures in the mill, and from committing any waste. That injunction was admittedly served upon him on the 8th day of August, 1900. The executors of Edward Ashby's will, who are named in the bill of complaint as having a power of sale, after the decree was made sold the mill. The purchaser was David G. Ashby, a brother of the defendant, Amos K. Ashby. The pur

chase was made about August 8, 1900, and there was a delay of a week or two in delivering the deed. When David G. Ashby received it, possession was not delivered by Amos, and an action of ejectment appears to have been brought against him, which has been adverted to here in the testimony, resulting in a judgment for the plaintiff David G. Ashby, who was put in possession of the mill in February of the present year, 1901. He then found that the mill had been denuded of a very considerable part of its equipment. These facts are not denied by anybody. The petition now in hearing was then filed by David G. Ashby, one of the parties in the original suit against Amos K. Ashby, asking that the latter be attached for contempt for removing the following named parts of the equipment of the mill: "Belting on roll No. 1,070; main belt on engine; belt on flour packer; grain conveyer belt; belt running from main shaft in third story; belting on roll elevators, on grain elevators, on separators; a wheat heater; main grain elevator; set of big scales, which were set in floor; also small scales, flour packer tubes, 3 pulleys; also an awning attached to said premises." The proof is substantially without dispute that all of the articles there named were in the mill, and remained in the mill up to the time of the purchase by David G. Ashby, the petitioner, in August after the service of the